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Wednesday, April 18, 2012

Supreme Court Rejects Organizational Liability for Torture

Today the Supreme Court issued its decision (.pdf download) in Mohamad v. Palestinian Authority, holding that the Torture Victim Protection Act of 1991 (“TVPA”) provides for liability only of natural persons, not organizations or corporations.

In this case, the family of a U.S. citizen, who was tortured and killed by intelligence officers of the Palestinian Authority and the Palestine Liberation Organization, sued under the 1991 Torture Victim Protection Act (“TVPA”). The TVPA provides a cause of action against “[a]n individual” for torture or extrajudicial killing committed under authority or “color of law” of any foreign state. The D.C. Circuit affirmed the district court’s dismissal of plaintiffs’ claims on the grounds that the TVPA applies only to natural persons, not to organizations.

Today the Supreme Court unanimously affirmed the D.C. Circuit. In an opinion by Justice Sotomayor, the Court considered the statutory language and legislative history of the TVPA, concluding that the everyday meaning of the word “individual” applies in this case and only includes natural persons. Petitioners had tried to convince the Court that, because Congress normally provides for organizational liability in tort statutes, its use of the word “individual” here was unusual and could only be parsed with consideration of the legislative history.

The legislative history, petitioners argued, reveals that Congress used the word “individual” to make clear that state entities could not be sued, but not to exclude corporate or organizational liability.

The Court’s opinion referenced Mohamad’s companion case, Kiobel v. Royal Dutch Petroleum. The Court initially granted cert in Kiobel on the question of corporate liability under the 1789 Alien Tort Statute, but after oral argument, ordered the parties to brief the issue of extraterritoriality -- that is, whether the ATS covers violations of international law committed overseas -- and put the case to the Court’s next term. Justice Sotomayor’s reference to Kiobel shed little light on the Court’s thinking in that case, although the Court is widely expected to restrict the reach of the ATS when it ultimately rules.

By restricting the reach of the TVPA to natural persons, who may be difficult to identify and are often judgment-proof, the Court has significantly reduced the likelihood that torture victims or victims’ families will be able to hold their torturers accountable.